P. v. Herrell

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Filed 12/27/06 P. v. Herrell CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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THE PEOPLE,
Plaintiff and Respondent,
v.
PHILLIP ROGER WOLCOTT HERRELL,
Defendant and Appellant.
C050610
(Super. Ct. No. CM023003)
A jury found defendant Phillip Roger Wolcott Herrell guilty
of assault with a firearm, possession of a firearm by a felon,
and misdemeanor battery. The trial court sustained two prior
felony convictions and sentenced defendant to six years in
prison.
On appeal, defendant contends the trial court erred in
denying his requested pinpoint instruction and failing to give
an instruction for brandishing a weapon as a lesser included
offense of assault with a deadly weapon. He also argues his
upper term sentence violates Blakely v. Washington (2004) 542

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U.S. 296 [159 L.Ed.2d 403] (Blakely). We reject these
contentions and affirm.
BACKGROUND
On the evening of April 19, 2005, Stephen Murray, Murray’s
wife Leigha Bellino, Blake Pollage, and Robert Nevers were at
Murray’s house. The men were drinking beer in the garage when
Robert Strawn and his girlfriend Lisa Lee drove up in Strawn’s
pickup. Strawn had bought a Suzuki Samurai from Murray for $400
and a used axle. The axle was defective, so Strawn went to
Murray’s residence to discuss taking the axle back and “work out
a deal” to clear his debt.
Murray went from the garage to Strawn’s truck in the
driveway, where Strawn showed him a shotgun he had inherited
from his grandfather. Strawn put the gun away and the two
started talking about Strawn’s debt. Defendant then came up and
interjected himself into the conversation. Defendant said to
Strawn: “[Y]ou need to pay Steve. You are not going to screw
him. You are going to pay him.” Defendant’s voice was raised
and he accused Strawn of taking advantage of Murray’s trust.
Strawn told defendant this had nothing to do with him. The
witnesses’ accounts vary as to the timing of what followed.
According to Murray, Bellino, and Nevers, the argument escalated
and defendant started to push Strawn, who pushed defendant back.
At some point during the argument, defendant yelled to Strawn “I
am going to kick your ass.” Lee then yelled at defendant and
slapped him on the cheek. Defendant struck Lee in the mouth,
opening up a cut on her lip.

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Murray pulled defendant and Strawn apart, while Bellino
took Lee into the house and cleaned her up. Bellino escorted
Lee back to Strawn’s truck and yelled at everyone to leave.
Defendant went back to his car, reached into the passenger door,
and pulled out a pistol. Defendant loaded a round into the
pistol and “said that he was going to take care of business.”
Defendant said, “I will kill you” as he pointed the pistol about
8 to 10 inches from Strawn’s head. Murray told a police officer
he had heard defendant say, “I am not afraid to shoot you, and I
will.”
Strawn backed up and said he would call the police. After
about 10-15 seconds, someone knocked the gun out of defendant’s
hand. Defendant then went to Strawn’s truck, where he reached
in and “tossed” Strawn around. Strawn opened the door, and
defendant tumbled back over a large rock in Murray’s driveway.
Nevers drove defendant home, and Strawn left with Lee.
According to Lee and Strawn, defendant first pulled the gun
from his car and pointed it at Strawn’s head. Strawn moved
toward his truck after the gun was knocked from defendant’s
hand. Defendant then pushed Strawn down, waited for Strawn to
get up, and pushed him down again. Lee intervened, accidentally
slapping defendant as she tried to stop Strawn from falling.
Defendant then hit Lee. Lee and Strawn left after Bellino got a
bag of ice for Lee’s lip.

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DISCUSSION
I
The Pinpoint Instruction Was Properly Refused
Defendant claims the trial court improperly denied his
requested pinpoint instruction. Defendant asked the trial court
to give the following instruction pinpointing his theory of the
case: “A defendant may not be convicted of Assault if his
intent in acting was not to apply physical force against the
victim, but was only an attempt to frighten or distract. If
after consideration of all of the evidence you have a reasonable
doubt that the defendant intended to apply physical force
against the victim you must find the defendant not guilty.” The
trial court denied the request, finding the instruction was not
supported by the evidence.
“‘“It is settled that in criminal cases, even in the
absence of a request, the trial court must instruct on the
general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing
the case are those principles closely and openly connected with
the facts before the court, and which are necessary for the
jury’s understanding of the case.” [Citation.]’” (People v.
Breverman (1998) 19 Cal.4th 142, 154.)
The defense has a right to a pinpoint instruction, that is,
an instruction on a particular defense theory, provided that it
appears the defendant is relying on the defense, or there is
substantial evidence supporting such defense and the defense is
not inconsistent with the defendant’s theory of the case.

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(People v. Wright (1988) 45 Cal.3d 1126, 1137-1138; see People
v. Earp (1999) 20 Cal.4th 826, 886.)
“But a trial court need not give a pinpoint instruction if
it is argumentative [citation], merely duplicates other
instructions [citation], or is not supported by substantial
evidence [citation].” (People v. Bolden (2002) 29 Cal.4th 515,
558.) “It is of course virtually axiomatic that a court may
give only such instructions as are correct statements of the
law. [Citation.] Accordingly, a court may refuse an
instruction that is incorrect. [Citation.]” (People v. Gordon
(1990) 50 Cal.3d 1223, 1275, overruled on other grounds in
People v. Edwards (1991) 54 Cal.3d 787, 835.)
Penal Code section 245, subdivision (a)(2) penalizes “[a]ny
person who commits an assault upon the person of another with a
firearm.” “An assault is an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of
another.” (Pen. Code, § 240.)
The Supreme Court of California has addressed the mental
state required for assault three times in the past 30 years. In
People v. Rocha (1971) 3 Cal.3d 893, the court held an intent to
injure is not required, concluding “that the criminal intent
which is required for assault with a deadly weapon . . . is the
general intent to wilfully commit an act the direct, natural and
probable consequences of which if successfully completed would
be the injury to another.” (Id. at p. 899, fn. omitted.)
In People v. Colantuono (1994) 7 Cal.4th 206, the Supreme
Court attempted again to eliminate the confusion on the issue of

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the mental state for assault. The court distinguished assault
from an attempt and concluded, “it is clear that the question of
intent for assault is determined by the character of the
defendant’s willful conduct considered in conjunction with its
direct and probable consequences. If one commits an act that by
its nature will likely result in physical force on another, the
particular intention of committing a battery is thereby
subsumed.” (Id. at p. 217.)
Most recently, in People v. Williams (2001) 26 Cal.4th 779,
the Supreme Court traced the history of the assault statute to
determine the required mental state and again noted that assault
was a distinct crime from criminal attempt. (Id. at pp. 785-
786.) The crime of assault focuses on the nature of the act,
not on the perpetrator’s specific intent. “An assault occurs
whenever ‘“[t]he next movement would, at least to all
appearance, complete the battery.”’ [Citation.]” (Id. at p.
786.) “Accordingly, we hold that assault does not require a
specific intent to cause injury or a subjective awareness of the
risk that an injury might occur. Rather, assault only requires
an intentional act and actual knowledge of those facts
sufficient to establish that the act by its nature will probably
and directly result in the application of physical force against
another.” (Id. at p. 790.) In other words, to be guilty of
assault, a defendant “must be aware of the facts that would lead
a reasonable person to realize that a battery would directly,
naturally and probably result from his conduct.” (Id. at p.
788.)

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The jury was instructed with CALJIC No. 9.00 (assault),
CALJIC No. 9.01 (assault requires the ability to commit injury),
CALJIC No. 3.30 (general intent), and CALJIC No. 9.02 (assault
with a firearm). The special instruction would have informed
the jury that showing a weapon with an intent to frighten was
not assault. This was an incorrect statement of the law and,
therefore, was properly refused. (People v. Gordon, supra, 50
Cal.3d at p. 1275.)
Defendant relies on People v. Marceaux (1970) 3 Cal.App.3d
613, People v. Garcia (1984) 159 Cal.App.3d 781, and People v.
Burres (1980) 101 Cal.App.3d 341 in support of his proposed
instruction. Subsequent cases have cast grave doubt on the
validity of the purported holdings of these cases.
Marceaux held that since assault required an intent to
commit battery, “a conviction may not be grounded upon an intent
only to frighten.” (People v. Marceaux, supra, 3 Cal.App.3d at
p. 618.) Garcia and Burres followed Marceaux in holding an
intent to frighten is incompatible with assault. (People v.
Garcia, supra, 159 Cal.App.3d at p. 789; People v. Burres,
supra, 101 Cal.App.3d at p. 346.)
Rocha overruled Marceaux for the proposition that assault
was not a general intent crime. (People v. Rocha, supra, 3
Cal.3d at p. 899, fn. 8.) In Colantuono, the Supreme Court
ruled that assault is not a specific intent crime even though it
is defined as an attempted battery. (People v. Colantuono,
supra, 7 Cal.4th at pp. 215-216.)

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Finally, in Williams, the Supreme Court reaffirmed “that
assault does not require a specific intent to injure the
victim,” and that the defendant “need not be subjectively aware
of the risk that a battery might occur.” (People v. Williams,
supra, 26 Cal.4th at p. 788, fn. omitted.) In the accompanying
footnote, the court pointed out that “a defendant who honestly
believes that his act was not likely to result in a battery is
still guilty of assault if a reasonable person, viewing the
facts known to defendant, would find that the act would
directly, naturally and probably result in a battery.” (Id. at
p. 788, fn. 3.)
In sum, assault focuses on the nature of the act, not the
defendant’s subjective intent. If the defendant willfully
commits an act the direct and probable result of which is a
battery, the defendant has demonstrated the general criminal
intent required for an assault conviction, even if his intent
was only to frighten and not to injure. (People v. Williams,
supra, 26 Cal.4th at pp. 785-786.)
The trial court did not err by refusing to give an
instruction which misstated the law.
II
The Court Did Not Err In Refusing A Lesser Instruction
Defendant claims the trial court erred in failing to
instruct the jury on the offense of brandishing a deadly weapon
as a lesser included offense of assault with a deadly weapon.
We find no error.

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We need not decide whether brandishing a weapon is a lesser
included offense of assault with a deadly weapon because there
was no evidence to support it.
Although a trial court is obliged to instruct, even without
a request, on the general principles of law that relate to the
issues presented by the evidence (People v. Cummings (1993) 4
Cal.4th 1233, 1311), it is well established that duty arises in
criminal cases as to lesser included offenses only “when the
evidence raises a question as to whether all of the elements of
the charged offense were present [citation], but not when there
is no evidence that the offense was less than that charged
[citations]” (People v. Breverman (1998) 19 Cal.4th 142, 154).
The court has no duty to instruct on lesser included offenses
not supported by substantial evidence (id. at p. 162) and
substantial evidence in this context is “‘“evidence from which a
jury composed of reasonable [persons] could . . . conclude[]”’
that the lesser offense, but not the greater, was committed”
(ibid.).
The distinction between assault with a deadly weapon under
Penal Code section 245 and mere brandishing of a deadly weapon
under Penal Code section 417 is the crime of brandishing “does
not require an intent to harm or the commission of an act likely
to harm others.” (People v. Hall (2000) 83 Cal.App.4th 1084,
1094.) None of the testimony indicates defendant intended only
to display the gun but did not intend to injure Strawn with it.
Defendant loaded the gun, pointed it at Strawn’s head, and

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threatened to kill him. He did not release his hold on the
weapon until others knocked away.
There were no defense witnesses or any other evidence
supporting an inference that defendant committed the offense of
brandishing rather than assault with a deadly weapon. Because
the evidence fails to support an instruction on brandishing,
there was no error in the court’s refusal to give it.
III
The Upper Term Sentence Was Proper
Defendant claims that Blakely, supra, 542 U.S. 296
[159 L.Ed.2d 403], invalidates the statutory method used by
California trial judges to impose an upper term, thereby
invalidating his sentence.
The California Supreme Court rejected defendant’s Blakely
contention in People v. Black (2005) 35 Cal.4th 1238, 1244,
1254-1256.1 Pursuant to Black, we reject defendant’s Blakely
claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
There is another reason to affirm the upper term sentence.
Applying the Sixth Amendment to the United States Constitution,
the United States Supreme Court held in Apprendi v. New Jersey
(2000) 530 U.S. 466 [147 L.Ed.2d 435] that other than the fact
of a prior conviction, any fact increasing the penalty for a
crime beyond the statutory maximum must be tried to a jury and
1 Defendant states he is making the argument because the
United States Supreme Court has not yet resolved this issue.

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proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d
at p. 455].) For this purpose, the statutory maximum is the
maximum sentence a court could impose based solely on facts
reflected by a jury’s verdict or admitted by the defendant.
Thus, when a sentencing court’s authority to impose an enhanced
sentence depends upon additional fact findings, there is a right
to a jury trial and proof beyond a reasonable doubt on the
additional facts. (Blakely, supra, 542 U.S. at pp. 303-304
[159 L.Ed.2d at pp. 413-414].)
One of the reasons the trial court gave for imposing the
upper term is defendant’s prior criminal convictions. (Cal.
Rules of Court, rule 4.421(b)(2).) As we have noted, the rule
of Apprendi and Blakely does not apply to a prior conviction
used to increase the penalty for a crime. Since one valid
factor in aggravation is sufficient to expose defendant to the
upper term (People v. Cruz (1995) 38 Cal.App.4th 427, 433),
defendant’s sentence did not violate the rule of Apprendi and
Blakely.

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DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
SCOTLAND , P.J.
MORRISON , J.

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